Thursday, May 14, 2009

Philip Zelikow's remarkable testimony yesterday before the Senate Judiciary CommitteeSubcommittee on Administrative Oversight and the Courts yesterday centered on the context and purpose for his now-famous 2006 memo countering the Office of Legal Counsel's findings that the CIA's "program of coolly calculated dehumanizing abuse and physical torment to extract information," as he put it, did not violate the U.S. Constitution's prohibitions against cruel and unusual punishment.

Donald Rumsfeld rejected the arguments of that memo and ordered it destroyed. At least one copy has been located in State Department files; it remains classified.

As described in Zelikow's testimony yesterday, a core purpose of the memo was to restore Americans' Constitutional protections against cruel and inhuman punishment. The memo suggests that as long as the findings in Jay Bybee's May 30, 2005 memo that the CIA program did not violate the Fifth Amendment were allowed to stand, Americans essentially have no civil liberties.

In a shocking bit of sophistry, the Bybee memo held that the CIA's interrogation program could not not violate Article 16 of the U.N. Convention Against Torture, which prohibits "cruel, inhuman or degrading treatment," because a) The Senate stipulated that this statute was to be interpreted in light of the Fifth Amendment, and b) the Fifth Amendment does not apply to aliens outside the United States. In other words, the U.S. committed itself to nothing in signing onto the CAT.

More to Zelikow's point, though, the Bybee memo held that the CIA program did not in any case violate the Fifth Amendment. Using a "shocks the conscience" standard, the memo held, among other things, that treatment does not "shock the conscience" unless it involves "the exercise of power without any reasonable justification in the service of a legitimate government objective." The interrogation practices at issue "are employed by the CIA only as reasonably deemed necessary to protect against grave threats to United States interests" - ergo, they do not shock the conscience.

In other words, the end justifies the means. Governmental authority can do anything to anyone "in the service of a legitimate government objective." Zelikow spells out what this means:

Further, the OLC position had implications beyond the interpretation of international treaties. If the CIA program passed muster under an American constitutional compliance analysis, then - at least in principle -- a progrma of this kind would pass American constitutional muster even if employed anwhere in the United States, on American citizens. Reflect on that for a moment.

Yes, let's. As long as that memo was operative,Americans had no constitutional protections against being held without trial and tortured at will, as long those doing the torturing held that they acted "in the service of a legitimate government objective."